UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
GRAY GRAPHICS CORP., )
)
v. )
)
UNITED STATES GOVERNMENT )
PRINTING OFFICE, et al., )
)
Defendants, ) CA 82-2869
)
and )
)
INTERNATIONAL COMPUTAPRINT )
CORPORATION, )
)
Intervenor-Defendant. )
__________________________________)
MEMORANDUM AND ORDER
In early September, 1982, plaintiff, a small Maryland printing
firm, submitted a low bid of approximately $2.7 million in
response to defendant Government Printing Office's ("GPO")
invitation for bids on a one-year contract beginning October 1st,
to print and distribute U.S. Patents. The GPO conducted a
routine pre-award survey of plaintiff to determine if it could
perform as expected if awarded the contract and concluded that it
could not. Consequently on September 27th, it awarded the
contract to the second low bidder, intervenor-defendant
International Computaprint Corporation ("Computaprint"), the
incumbent contractor, at its bid price of approximately $3
million.
On October 7, 1982, plaintiff filed this action for injunctive
relief (essentially mandamus) against the GPO to compel the
referral of the finding of its non-responsibility to the Small
Business Administration ("SBA") pursuant to the Small Business
Act (the "Act"), 15 U.S.C., § 637(b)(7), before letting the
contract to Computaprint. Subparagraph (A) of that statute
provides, in pertinent part, that the Small Business
Administration shall "...certify to Government procurement
officers...with respect to all elements of responsibility [of
small business concerns to receive and perform specific
Government contracts], including, but not limited to, capability,
competency, capacity, credit, integrity, preseverance, and
tenacity..." It continues to state:
"A Government procurement officer ...may not [for any of the
above reasons] preclude any small business concern...from being
awarded such contract without referring the matter for a final
disposition to the [Small Business] Administration."
Subparagraph (C) provides that procurement officers are directed
to accept such SBA certifications as conclusive and shall let
contracts to small business concerns "...without requiring [them]
to meet any other requirement of responsibility or eligibility."
(Emphasis added).
Following this Court's denial of plaintiff's application for
preliminary relief Computaprint intervened as a party-defendant,
and all parties have proceeded to the merits on cross-motions for
summary judgment, upon the foregoing facts, supported by
appropriate affidavits, agreeing as well that plaintiff is a
"small business concern" and that referral of the matter of its
responsibility to the SBA is mandatory before the contract is
awarded elsewhere if the GPO is subject to the Small Business
Act, 15 U.S.C., § 631 et seq. They also agree that the GPO is an
agency of the legislative branch of government. See United
States v. Allison, 91 U.S. 303 (1875). Whether the Act applies
to the GPO defends, of course, upon whether Congress intended it
to do so.1
The Act applies to "Federal agencies," 15 U.S.C., § 632(b), as
that term is defined in the Administrative Procedure Act, 5
U.S.C., § 551(1), which, in its turn, defines "agency" as "each
authority of the Government of the United States...," excluding,
inter alia, "the Congress," subsuming, according to defendants,
all legislative branch agencies. But 15 U.S.C., § 632(b) itself
also expressly exempts two other "authorities" of the United
States from its operation: the U.S. Postal Service and the
General Accounting Office ("GAO") - the latter being a
legislative branch agency, too - while making no mention at all
of the GPO.
The legislative history is equivocal. The definitional section
was added by the 1978 amendments to the Act which originated in
and passed the House of Representatives as H.R. 11318, 95th
Cong., 1st Sess. (1977), sans the definitions which were added by
one Senate committee without comment and amended by a second (the
Committee on Governmental Affairs) to add the express exclusion
of the Postal Service and GAO, stating in its report that its
"...definition of 'agency' excludes the United States Postal
Service, the General Accounting Office, and agencies in the
legislative and judicial branches." S. Rep. No. 1140, 95th
Cong., 2nd Sess. 12 (1978) (emphasis added). The final clause of
the report, however, was not reiterated in the statutory language
itself, nor was it added by the Conference Committee which
adopted the Senate's definitional section, also without comment.
H.R. Rep. No. 1714, 95th Cong., 2nd Sess., (1978). The bill,
including the definitional section, 15 U.S.C., § 637c(2), became
law on October 24, 1978.2
Arguing from the premise expressio unius est exclusio alterius
plaintiff asserts that the failure to number the GPO with the
Postal Service and the GAO as an agency not subject to the Small
Business Act indicates a legislative intent to treat the GPO as
an agency which is subject to the Act. It also says that
Congress meant precisely what it said when it exempted "the
Congress" from the APA in 1946, i.e., the Senate and the House of
Representatives but not its various appendages, and when the
statutory language is clear, plaintiff notes, legislative history
is irrelevant. Ex parte Collett, 337 U.S. 55, 61 (1948).3
Defendants assert that the doctrine of separation of powers has
historically resulted in agencies in the different branches of
government being treated separately notwithstanding similarities
of function. See Pickus v. Board of Parole, 507 F.2d 1107, 1112
(D.C. Cir. 1974). On the other hand Congress has shown no
reluctance to subject its own agencies to legislation
implementing what it intends to be a government-wide policy, see
Thompson v. Sawyer, 678 F.2d 257, 264 (D.C. Cir. 1982), and it is
the declared "policy of the United States," according to the 1978
amendments to the Small Business Act, that "small business
concerns" should "...have the maximum practicable opportunity to
participate in the performance of contracts let by any Federal
agency." 15 U.S.C., § 637(d)(1) (emphasis added). No reason is
suggested as to why that policy should not obtain as well to the
public printer as to any other governmental agency which might
otherwise prefer to deal with more established firms.4
There appear to be no controlling judicial decisions in point.
Nevertheless, the Court holds that the GPO is not subject to the
Small Business Act for the reason that the SBA itself does not
now and has never regarded the GPO to be subject to its
jurisdiction, (Affidavit of Donald W. Farrell, Esq., Associate
General Counsel of the SBA, of November 2, 1982). In the absence
of compelling authority to the contrary, the Court is obliged to
give great deference to an agency's own determination of its
authority. United States v. Rutherford, 442 U.S. 544, 552-54
(1979); Udall v. Tallman, 380 U.S. 1, 16-17 (1965); Department of
Defense, Army-Air Force Exchange Service v. F.L.R.A., 659 F.2d
1140, 1161-62 (D.C. Cir. 1981).
Therefore, it is, the 20th day of December, 1982, ORDERED, that
defendants' cross-motion for summary judgment is denied; and it
is
FURTHER ORDERED, that plaintiff's complaint is dismissed with
prejudice.
Thomas Penfield Jackson
U.S. District Judge
December 20, 1982
_______________
1 Computaprint contends that plaintiff's deficiencies are so
extensive that it is unlikely to receive SBA's certification of
its competency in any event, an issue as to which material facts
are in dispute but also one unnecessary to decide.
2 The legislative history of the definitional sections of both
the Small Business Act and the APA are meticulously traced in the
federal defendants' brief, at pp. 10-14, and plaintiff's brief at
4-7, to reach diametrically opposed results.
3 At oral argument plaintiff also, observed that the specific
section of the statute in issue, 15 U.S.C., § 637(b)(7) (A-C),
nowhere speaks of "agencies" but, rather, of "government
procurement officers" without regard to the agencies for whom
they work, thus, making the meaning of "agency" irrelevant.
Defendants point out that the definitional section declares a
"government procurement contract" to be any contract for the
procurement of goods or services by a "Federal agency," importing
the meaning of "agency" back into the debate once more.
4 The GPO says, however, that of the approximately 260,000
contracts it lets annually, over 90% are awarded to small
businesses notwithstanding it is under no compulsion to do so.
(Affidavit of Patricia R. Havey, Manager of the Printing
Procurement Department, GPO, of October 18, 1982).